Horbach v. Tyrrell

37 L.R.A. 434, 67 N.W. 485, 48 Neb. 514, 1896 Neb. LEXIS 104

• Court: Nebraska Supreme Court
• Decided: May 19, 1896
• Docket: No. 6231
• Status: Published

Opinions

Rag-ax, C.

John A. Horbach brought this suit in equity in the district court of Douglas county to foreclose a real estate mortgage executed and delivered to him by Isaac Tyrrell and Sarah J., his wife. The mortgage conveyed the east fifty feet of the west four hundred feet of lot 2, in Bartlett’s Addition to the city of Omaha, and lot 21, in block 28, Sheridan Place, city of Omaha. The mortgage bore date May 2, .1890, and was filed for record in the office of the register of deeds of Douglas county May 5, 1890. Prior to the bringing of this suit Isaac Tyrrell died intestate. I-Iis widow and heirs and George L. Wass, his administrator, were made defendants to this action. On the trial the court appointed Elmer 0. Thomas, an attorney of the court, guardian ad litem for the minor children. Julia M. Schenck and theO. F. Davis Company, a. corporation, were also made parties to the action and filed cross-petitions. Julia M. Schenck sought to foreclose a mortgage bearing date May 16, 1887, executed by Tyrrell and wife to the O. F. Davis Company on the said east fifty feet of the west four hundred feet of lot 2, in Bartlett’s Addition, she being the assignee of the O. F. Davis Company. This mortgage was recorded in the office of the register of deeds of Douglas county on the 18th of May, 1887. The O. F. Davis Company sought to foreclose a mortgage dated May 16, 1887, and recorded May 23, 1887, executed by Tyrrell and wife to it on the same premises described in the mortgage assigned by the O. F. Davis Company to Schenck. If all these mortgages are valid, the mortgage of Julia M. Schenck is a first and the mortgage of the O. F. Davis Company a second lien upon all the real estate described therein, and the mortgage of Horbach a third lien upon the property described in the Schenck and O. P. Davis Company mortgages, and a first lien on lot 21, block 28, Sheridan Place. By the decree of the district court the mortgage of Horbach was held to be valid, and the mortgages sought to be foreclosed by Schenck and the O. P. Davis Company were adjudged void. Prom tins decree the O. P. Davis Company and Julia M. Schenck have appealed.

1. The O. F. Davis Company, to whom the mortgages adjudged void were made and delivered, was at the time a domestic corporation. The real estate conveyed by the mortgages was the homestead of Tyrrell and wife, and the notary public who took the acknowledgment of Mr. and Mrs. Tyrrell to the mortgages was, at the time, the secretary and treasurer of the O.P. Davis Company, mortgagee. The learned district court was of opinion that the notary public, by reason of his relation to the mortgagee, was disqualified from taking the acknowledgment of Mr. and Mrs. Tyrrell, and that therefore the mortgages were absolutely void. Conveyances of real estate in this state, except leases for one year or for a less time, if executed in this state, are required by the statute to be signed by the grantor, being of lawful age, in the presence of at least one competent witness and to be acknowledged or proved. (See sec. 1, ch. 73, Compiled Statutes, 1895.) By section 2 of said chapter it is provided that the grantor must acknowledge the instrument to be his voluntary act and deed. In Burbank v. Ellis, 7 Neb., 156, Harrison v. McWhirter, 12 Neb., 152, Buck v. Gage, 27 Neb., 306, and Connell v. Galligher, 36 Neb., 749, it was held: The functions of an acknowledgment to a deed are twofold, — (1) to authorize the deed to be given in evidence without further proof of its execution, and (2) to entitle it to be recorded. It was further held that the acknowledgment of a deed to real estate was no part of the deed itself. We must not be understood as questioning in the slightest degree the correctness of these decisions. But the real estate described in the conveyances considered in those cases was not the homestead of the parties making the conveyances, and the decisions had no reference to the acknowledgment of conveyances affecting the homestead of the grantors. In 1879 the legislature passed an act entitled “Homesteads.” This is now chapter 36, Compiled Statutes of 1895. Section 4 of this chapter is as follows: “The homestead of a married person cannot be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife.” The obvious purpose of this statute is to render all conveyances or incumbrances made of a homestead absolutely void unless such conveyances are not only signed and witnessed but acknowledged by both the husband and the wife. It therefore follows that the mortgages of the appellants Schenck and the O. F. Davis Company are void, even as between the parties thereto, if those mortgages were not duly acknowledged; that is, if the officer who took the acknowledgment of the grantors therein was disqualified from taking such acknowledgment.

2. In what character or capacity does an officer act in taking the acknowledgment of a grantor to a conveyance of real estate? Is the act judicial or ministerial? Section 2, chapter 73, supra, only requires the grantor to acknowledge the instrument to be his voluntary act and deed; and the requirement of section 3 of said chapter is that he may make such an acknowledgment before a judge or clerk of any court or some justice of the peace or notary public. No statute of which we are aware declares that the act of taking an acknowledgment is or shall bé held to be a judicial one, and section 1, article 6, of the constitution of the state declares: “The judicial power of this state shall be vested in a supreme court, district courts, county courts, justices of the peace, police magistrates, and in such other courts inferior to the district courts as may be created by laAV for cities and incorporated towns.” Judicial power, it would seem, is the authority of some person or tribunal to hear and determine a controversy- and to reduce such determination to a judgment or decree binding the parties thereto; but the acknowledgment by a grantor that he executed a conveyance is merely his voluntary admission that he has done so. The officer taking the acknowledgment has no power to compel a grantor to attend before him and no power to coerce an answer as to whether he did execute a conveyance; and upon the theory that the act of an officer in taking an acknowledgment is a ministerial one the supreme court of Massachusetts held in Learned v. Riley, 14 Allen, 109, that the acknowledgment of a deed might be taken by a justice of the peace out of the county in- which he resides. The cases in which the question has been considered are, however, by no means harmonious. They are collated in 1 American & English Encyclopedia of Law, second edition, at pages 487, 488, and it is there said that the weight of authority is that the act of an officer in taking an acknowledgment of a real estate conveyance is a ministerial one. Following are some of the authorities there collated which hold such act to be judicial : Griffith v. Ventress, 91 Ala., 366; Wedel v. Herman, 59 Cal., 514; Stevens v. Hampton, 46 Mo., 404; Long v. Crews, 113 N. Car., 256; Cover v. Manaway, 115 Pa. St., 338; Bowden v. Parrish, 86 Va., 67; Pickens v. Knisely, 29 W. Va., 1; Johnston v. Wallace, 53 Miss., 331.

In 'Wasson v. Connor, 54 Miss., 351, the court said: “It is evident that the taking of an acknowledgment .of a grantor is a gwm-judicial act. * * * The officer who takes an acknowledgment acts in a judicial character in determining whether the person representing himself to be * * * the grantor named in the conveyance actually is the grantor. He determines further whether the person thus adjudged to be the grantor does actually and truly acknowledge before him that he executed the instrument.”

In White v. Connelly, 105 N. Car., 65, it was held that the clerk of a superior court, in adjudicating a certificate of acknowledgment and admitting the instrument to probate and ordering registration, acts judicially.

Tlie following are some of the authorities which hold that such an act is a ministerial one: Elliott v. Peirsol, 1 Pet. [U. S.], 388; Hill v. Bacon, 43 Ill., 477; Beuley v. Curtis, 92 Ky., 505; Gibson v. Norway Savings Bank, 69 Me., 579; Scanlan v. Wright, 13 Pick. [Mass.], 523; Bank of Benson v. Hove, 45 Minn., 40; Truman v. Lore, 14 O. St., 144; Williamson v. Carskaden, 36 O. St., 664; Lewis v. Waters, 3 Har. & McH. [Md.], 430.

The conflict in the authorities is probably due to the peculiar statutes of the various states on the subject of acknowledgments. In Calumet & Chicago Canal & Dock Co. v. Russell, 68 Ill., 426, and Kerr v. Russell, 69 Ill., 666, the supreme court held that an officer in taking the acknowledgment of a married woman acted judicially; but when the acknowledgments considered in those cases were taken the statute of Illinois required of an officer taking the acknowledgment of a married woman to make her acquainted with and explain to her the contents of the conveyance; to examine her separate and apart from her husband as to whether she executed the conveyance voluntarily, freely, and without the compulsion of her husband, and to make a certificate accordingly. (See sec. 17, ch. 24, Statutes of Illinois, 1856.) Subsequently the legislature repealed this statute and enacted another providing, in effect, that if a married woman should join with her husband in the execution of a conveyance of real estate, she should be bound and concluded by the same in the same manner as if she were sole; that the acknowledgment of a married woman to a conveyance of real estate might be taken the same as if she were a feme-sole and have the same effect. (See Session Laws of Illinois 1869, p. 359.) After the passage of the statute • quoted above the supreme court of Illinois, in People v. Bartels, 138 Ill., 322, held that the taking of an acknowledgment of a married woman to a conveyance of real estate was a ministerial act. Magruder, C. J., speaking for tbe court, said: “Tbe doctrine that tbe taking of an acknowledgment is a judicial act had its origin in tbe consideration of acknowledgments by married women, where tbe officer is required to make tbe privy examination herein referred to; and as applied to such cases tbe doctrine is sound.” He then cites Calumet & Chicago Canal & Dock Co. v. Russell and Kerr v. Russell, supra, and remarks that in these cases “tbe acknowledgments were by married women, and the certificates stated that they were examined separate and apart from their husbands, * * * as required by tbe statute then in force. * * *' In those _cases tbe taking of tbe acknowledgment was correctly held to be a judicial act. But tbe present statute of this state no longer requires tbe separate examination of a married woman in order to relinquish her dower or convey her separate estate. She is treated as though she were a feme-sole.” Tbe statutes of this state require nothing more of a married woman than is required of her husband to make effectual a conveyance of her real estate or effectual a conveyance of her dower interest in the real estate of her husband. All that is required of either a husband or wife is that they shall sign the conveyance; that it shall be witnessed, and that they shall acknowledge the signing of the instrument to be their voluntary act and deed. If the real estate described in the conveyance is a homestead, then it must be not only signed and witnessed, but it must be acknowledged, in order to be good even between the parties; and if not a homestead, the conveyance, if signed, witnessed, and delivered, will pass the title between the parties. We think that the weight of authority is to the effect that the act of an officer in taking the acknowledgment of a grantor to a conveyance of real estate is a mere ministerial act.

3. This brings us to the precise question in this case, namely: Was the acknowledgment of Mr. and Mrs. Tyr-rell to the mortgages on their homestead, taken by the notary public, void because of the fact that such notary public was then and there the secretary and treasurer of the mortgagee? There is no evidence in the record that this notary public had any interest whatever in the corporation mortgagee. No law of this state requires that a secretary or treasurer of a corporation shall be a stockholder thereof; and simply because the evidence shows that a person is secretary and treasurer of a corporation, the court ought not to presume that he was therefore a stockholder in such corporation. (Florida Savings Bank & Real Estate Exchange v. Rivers, 18 So. Rep. [Ela.], 850.) What interest and what relationship possessed by an officer disqualifies him from taking an acknowledgment of a conveyance of real estate? We have not been cited to any authority, nor have we been able to find one, which lays down, or attempts to lay down, any rule which will afford in all cases a safe test for determining whether an officer is disqualified by reason of his relationship or interest from taking an acknowledgment in any particular case. Whether such disqualification exists in any case must be determined from the peculiar facts and circumstances of that case. No statute exists in this state which prescribes what relationship or interest of an officer shall disqualify him from taking an acknowledgment in any given case; but it would seem that on grounds of public. policy an officer should be disqualified from taking an acknowledgment whose direct and beneficial interest would be subserved in having the conveyance made which he acknowledged. And perhaps it may be said, as a very general proposition, that an officer who is a party to a conveyance or interested therein is disqualified from taking the acknowledgment of the grantor. What relationship and what interest disqualifies an officer from taking an acknowledgment has been many times considered by the courts, as an examination of the following authorities will show:

In Hammers v. Dole, 61 Ill., 307, it was held that the acknowledgment of a mortgage taken before a justice of the peace, who was also the mortgagee, is void as to third parties, notwithstanding the fact that he is the only justice in the township qualified to take acknowledgments.

In Brereton v. Bennett, 25 Pac. Rep., 310, the supreme court of Colorado held: “The fact that the officer taking the acknowledgment of a chattel mortgage was the partner of the mortgagee and negotiated the loan secured by the mortgage does not render the mortgage fraudulent and void as to other mortgage creditors, when it is not shown that he was a party in interest to either the lien or the note.”

In Stevenson v. Brasher, 90 Ky., 23, the court of appeals of Kentucky held that where only the county clerk and his deputies are authorized to take acknowledgments of deeds, the clerk may take the acknowledgment of a deed in which he is grantee.

Chapter 37, section 2, of the Code of North Carolina permits a deputy clerk to take the probate of a deed. In Piland v. Taylor, 113 N. Car., 1, it was held that the fact that the clerk was grantee did not invalidate the probate taken by the deputy.

The statutes of Michigan provide that a judicial sale shall be made by the sheriff or under sheriff and the deed executed by the officer making the sale. In Cook v. Foster, 96 Mich., 610, the supreme court of that state, in construing this statute, held that a deed executed by an under sheriff might be acknowledged by the sheriff, he being a notary public.

In Ewing v. Vannewitz, 8 Mo. App., 602, it was held that the acknowledgment of a deed of foreclosure made by a sheriff as trustee under a deed of trust may be taken by a notary who is also deputy sheriff.

In Fredericksburg Nat. Bank v. Conway, 1 Hughes [U. S. C. C.], 37, it was held “a notary, who was one of the beneficiaries under a deed of trust, might take the grant- or’s acknowledgment.”

In Withers v. Baird, 7 Watts [Pa.], 227, it was held that an officer who is bound to make title through third persons is so far interested in the conveyance as to be disqualified to take the acknowledgment of-tbe wife of tlie grantor.

In Sample v. Irwin, 45 Tex., 567, it was -field tfiat a notary wfio identifies fiimself witfi tfie transaction by placing fiis name on the face of a deed of trust, as tfie avowed agent of one of tfie parties, cannot acknowledge tfie instrument.

In Nichols v. Hampton, 46 Ga., 253, it was field tfiat a notary wfio is also attorney for the mortgagor cannot take fiis client's acknowledgment of tfie mortgage; but in Bierer v. Fretz, 32 Kan., 330, it was field tfiat an acknowledgment of a mortgagor was good although taken by an attorney for tfie mortgagee.

In Penn v. Garvin, 56 Ark., 511, it was field tfiat a notary, wfio acted as agent of a mortgagor in obtaining tfie loan secured by tfie mortgage, is not so interested as to be disqualified to take tfie acknowledgment of tfie mortgage.

Iii Kutch v. Holley, 77 Tex., 220, it was field tfiat a married woman’s acknowledgment taken by a notary, wfio was the attorney of her husband, but not beneficially interested in tfie deed, is valid.

In City Bank of Boone v. Radtke, 87 Ia., 363, it was field tfiat “tfie acknowledgment of a chattel mortgage made to a partnership before a notary wfio is one of tfie partners is void” as to third parties without actual notice.

In Long v. Crews, 113 N. Car., 256, it was field tfiat tfie acknowledgment of a trust deed before a notary wfio is a preferred creditor therein is a nullity.

In Lynch v. Livingston, 6 N. Y., 422, it was field tfiat a commissioner of deeds may take tfie acknowledgment of a deed, although so related to tfie makers as to be disqualified to act as judge or juror in a trial where they are parties.

In Remington Paper Co. v. O’Dougherty, 81 N. Y., 474, it was field tfiat a justice of tfie peace may take tfie acknowledgment of a deed in which, fiis father is grantor and fiis wife grantee.

In Jones v. Porter, 59 Miss., 628, it was held that if the officer is beneficially interested his taking the acknowledgment of a relative wonld be void on that ground, and that the acknowledgment of a deed before the husband of the grantee therein was void.

In Kimball v. Johnson, 14 Wis., 734, it was held: “The acknowledgment of a mortgage made to a married woman is not invalid because taken before the husband of the mortgagee who was a justice of the peace.”

In First Nat. Bank of Helena v. Roberts, 9 Mon., 323, it was held that a notary who is the attorney and nephew of the party to the deed is not so interested as to be disqualified to take the acknowledgment of the deed.

In Sawyer v. Cox, 63 Ill., 130, it was held that an officer of a corporation whose duty it is to countersign and register its deeds is not thereby disqualified from taking acknowledgment thereof as a notary, his signature not being necessary to the validity of the instrument.

These are not all the cases, by any means, in which this question has been considered, but they serve to show the futility of any attempt to lay down any general rule upon the subject. We reach the conclusion that a notary public is not disqualified from taking an acknowledgment of a mortgage made to a corporation of which he is secretary and treasure!’, it not appearing that he was a stockholder in such corporation or otherwise beneficially interested in having the conveyance made. The decree appealed from is reversed and the cause remanded to the district court for further proceedings in accordance with this opinion.

Reversed and remanded.

Irvine, C., having presided on the trial in the court below, took no part in the consideration here of the case.